2016-10-21

AFRICA: DCA Trust vs ICANN & ZACR Case Remanded To California Court

In a ruling sure to get the attention of those (governments, companies, organizations, and individuals) concerned with ICANN's jurisdiction in the United States, including the current WS2 ICANN jurisdiction working group, the federal court trial judge in the new gTLD .AFRICA case, DotConnectAfrica Trust (DCA) vs ICANN and ZA Central Registry (ZACR), has ruled: 1) ZACR is an indispensable party entitled to intervene; 2) ZACR's presence in the case as a foreign party (as is the Plaintiff), destroys the Court's federal diversity (subject matter) jurisdiction, and therefore, 3) the case must be remanded to California state court for further proceedings. Note that there is also an interlocutory appeal pending in the United States Court Of Appeals For The Ninth Circuit. The complete ruling of the U.S. District Court is embedded below, but here is the most relevant part:

"... Plaintiff DCA and Intervenor-Defendant ZACR are both foreign citizens. See Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (holding “[d]iversity jurisdiction does not encompass foreign plaintiffs suing foreign defendants”); Faysound, Ltd. v. United Coconut Chems., Inc., 878 F.2d 290, 294–95 (9th Cir. 1989) (holding the presence of citizen defendant does not save diversity jurisdiction as to alien co-defendant in action brought by alien plaintiff because diversity must be complete); Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 991 (9th Cir. 1994). As the Court has already found that ZACR is entitled to intervene as a matter of right, if ZACR is considered an indispensable party, ZACR’s presence would destroy complete diversity .... the Court finds that ZACR is an indispensable party. As a nondiverse, indispensable party, ZACR destroys diversity jurisdiction, and remand of this action to state court is proper ..."--U.S. District Court, October 19, 2016 (emphasis added)

Ironically, this could be a BIG win for the plaintiff DCA (DotConnectAfrica Trust). Unlike U.S. federal courts where unanimous jury verdicts are required, in a California civil case, it only takes 9 of the 12 jurors to agree on a verdict (source pdf). The U.S. District Court Judge had previously assigned this case to a (10-12 days) jury trial beginning February 28, 2017. SeeScheduling Order (pdf).